548 F.2d 1 (1st Cir. 1976), 76-1016, United States v. Sanabria

Docket Nº:76-1016.
Citation:548 F.2d 1
Party Name:UNITED STATES of America, Appellant, v. Thomas SANABRIA, Appellee.
Case Date:December 29, 1976
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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548 F.2d 1 (1st Cir. 1976)

UNITED STATES of America, Appellant,

v.

Thomas SANABRIA, Appellee.

No. 76-1016.

United States Court of Appeals, First Circuit

December 29, 1976

Argued June 3, 1976.

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Frederick Eisenbud, Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty.; Stephen H. Jigger, Sp. Atty., Dept. of Justice, and Sidney M. Glaser, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellant.

Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan and Donald G. Tye, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This case presents several substantial questions concerning the conditions under which the United States may appeal from an adverse decision in a criminal case.

In November, 1972, defendant-appellee Thomas Sanabria and fifteen others were indicted for conducting an illegal gambling business, encompassing both a numbers and a horse betting operation, in violation of 18 U.S.C. § 1955. 1 The one count indictment charged them with "accepting, recording and registering bets and wagers on a parimutual (sic) number pool and on the result of a trial and contest of skill, speed, and endurance of beast . . . a violation of the laws of the Commonwealth of Massachusetts, to wit, M.G.L.A. Chapter 271, Section 17 . . . ." Following some three years of pre-trial activity, a jury trial of defendant and ten co-defendants commenced on November 10, 1975 in the federal district court for the district of Massachusetts. At trial, the government introduced evidence tending to show that defendants were involved in an illegal numbers and horse betting gambling business in Massachusetts.

After both sides had rested, defendant moved for a judgment of acquittal. He argued first that there was insufficient evidence of his involvement in horse betting gambling to support a conviction upon that theory and second that, regardless of the evidence of numbers activity, the government had failed sufficiently to allege a violation of the Massachusetts laws prohibiting such conduct and could not prosecute him on a numbers theory. Defendant reasoned that the only Massachusetts statute which was cited, Mass.Gen.Laws c. 271 § 17, has been interpreted by the Massachusetts courts as not to prohibit numbers activity, which, under the case law, is proscribed exclusively by id. § 7, see Commonwealth v. Boyle, 346 Mass. 1, 189 N.E.2d 844 (1963). He therefore urged that there had not been a sufficient allegation of illegal numbers activity to permit the government to obtain a guilty verdict on that basis. This objection to the indictment had not been raised

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either in the pre-trial motions or in any objection to the introduction of evidence during the trial. 2

The district court was persuaded by defendant's argument regarding Massachusetts law, and presumably because it thought that the citation of § 17 alone could have led a criminal defendant to believe that the government was not proceeding on a numbers theory, it held that the policy that criminal defendants receive notice of the charges against them would be violated if the numbers aspect of the case were permitted to proceed. Having concluded that the indictment could not be interpreted to charge accepting bets on a pari-mutuel numbers pool, the district court excluded the government's evidence of numbers activity. It then focused on the evidence of horse betting and, finding it insufficient, entered a judgment of acquittal for defendant.

The government now seeks appellate review of the district court's action. It concedes that there can be no review of the district court's ruling that there was insufficient evidence of horse betting to support a conviction. However, it seeks review of the district court's decision to exclude the charge based upon numbering activities, and it requests that we order a new trial on this portion of the indictment. If we have appellate jurisdiction, there is no question but that the government is entitled to the relief it seeks. 3 In United States v. Morrison, 531 F.2d 1089, 1094 (1st Cir. 1976), which had not been decided at the time of the district court's action, we held that an indictment which was identical to that in the case at bar in all significant respects was sufficient to place the criminal defendant on notice that numbers activity was a basis upon which the government sought to establish criminal liability under § 1955. Defendant concedes that Morrison is controlling if we have appellate jurisdiction.

Since the government may appeal an adverse judgment in a criminal case only when authorized by statute, see United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892), the first question we must face is whether a statute authorizes this appeal. The relevant statutory provision, 18 U.S.C. § 3731, provides in pertinent part:

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

"The provisions of this section shall be liberally construed to effectuate its purposes."

In deciding whether the present appeal is authorized thereunder, we must determine, first, whether the district court's action was the dismissal of an indictment "as to any one or more counts" within the meaning of § 3731, and, second, whether the double jeopardy clause will prohibit further proceedings against the defendant under § 1955 based upon allegations of numbers activity. The latter question, of course, pertains both to our appellate jurisdiction and to the constitutionality of such further proceedings against defendant.

The first issue arises...

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